Can I take her to court for transferring his assets with a POA?
Q: My husband updated his Will recently but failed to update his General Durable POA. I don’t know if he did it on purpose or simply forgot. A couple of days before he passed away his daughter took out $100K in stocks that were supposed to go to me after he passed. My question is, can she prove she acted on his best interest? She told me he asked her to take care of his affairs and that is what she was doing. However, as far as I know there were no witnesses when this conversation took place. Can I take her to Court and win on the grounds of the updated Will and how is her taking his money in his best interest? (Donegal, PA)
A: More information is needed but based on what you say, she could have exceeded the scope of authority granted to her through the POA. Under the recent enactments to the PA Power of Attorney statues, the POA must specifically grant someone authority to make a gift to themselves for her to do what you say she did. You need to speak with a local attorney versed in the most recent POA statute and have him or her look at the POA document. I just spent almost three years litigating a similar alleged abuse of POA powers. I would act now before she liquidates the funds. If the attorney feels you have an issue he will want to get a court order to freeze the funds pending his investigation. Additionally, under the law in most states, she would be barred from testifying to the conversation with him under the PA Dead Man’s Act because she would financially benefit from a statement made by a dead person. You may also have an issue regarding your statutory right to elect against the will, if you have consequently been disinherited by her conversion of his asset.